Arbitration Services, 30704-30706 [2010-13120]

Agencies

• Federal Mediation and Conciliation Service

[Federal Register Volume 75, Number 105 (Wednesday, June 2, 2010)]
[Rules and Regulations]
[Pages 30704-30706]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-13120]


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FEDERAL MEDIATION AND CONCILIATION SERVICE

29 CFR Part 1404

RIN 3076-AA12


Arbitration Services

AGENCY: Federal Mediation and Conciliation Service.

ACTION: Final rule.

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SUMMARY: This final rule amends the Federal Mediation and Conciliation 
Service (FMCS) rules pertaining to arbitration services. It revises 
rules addressing the removal of arbitrators from the FMCS roster, the 
process relating to complaints about arbitrators, procedures for 
requesting lists and panels, arbitrators' inactive status, the 
selection by parties and appointment of arbitrators, and arbitrators' 
obligation to provide FMCS with certain case information. The final 
rule also provides that FMCS may decline to service any request by a 
party for an arbitration list or panel based on the party's non-payment 
of arbitrator fees. In addition, the final rule raises the annual 
listing fee for all arbitrators on the FMCS roster. The changes will 
promote more efficient and effective procedures involving arbitrator 
retention and arbitration services. The increased annual listing fee 
more accurately reflects FMCS's costs of maintaining and responding to 
requests for arbitrators' biographical data. The final rule withdraws 
the proposed revisions to Sec.  1404.9(b).

DATES: This final rule is effective July 2, 2010.

FOR FURTHER INFORMATION CONTACT: Vella M. Traynham, Director, Office of 
Arbitration Services, FMCS, 2100 K Street, NW., Washington, DC 20427. 
Telephone: (202) 606-5111.

SUPPLEMENTARY INFORMATION: Pursuant to 29 U.S.C. 171(b) and 29 CFR part 
1404, FMCS maintains a roster of qualified labor arbitrators to hear 
disputes arising under collective bargaining agreements and provide 
fact finding and interest arbitration. FMCS amends its rules pertaining 
to such arbitration services as follows: The revised rule relating to 
the removal of arbitrators from the roster provides that FMCS will give 
written notice of removal to the affected arbitrator. The revised rule 
relating to complaints against arbitrators provides that complaints 
should be in writing and directed to the director of the office of 
arbitration services, and should cite specific sections of the 
professional code or FMCS rules allegedly violated by the arbitrator. 
The revised rule on arbitrators' inactive status clarifies the 
applicable annual listing fee and suggests that arbitrators use 
inactive status to assist them in certain scheduling circumstances. The 
revised rule on procedures for requesting panels and lists provides 
that FMCS may decline to service any request from a party for 
arbitration lists or panels based on the party's non-payment of 
arbitrator fees. The revised rule on the selection by parties and 
appointment of arbitrators provides that arbitrators must provide FMCS 
with certain information upon being selected by a party. The revised 
rules describe the methods of arbitrator selection that FMCS will 
accept, where the parties' collective agreement is silent on the manner 
of selection. These changes are intended to make FMCS's arbitration 
procedures more efficient and effective.
    FMCS also amends Appendix to Part 1404 to increase the annual 
listing fee from $100 to $150 for all arbitrators on the FMCS roster. 
With increasing frequency, parties have been requesting that FMCS 
furnish arbitration panels that are individualized to the dispute at 
issue. This requires detailed research and review of arbitrators' 
biographies. The increased listing fee reflects the cost in staff time 
necessary to be responsive to these requests as well as the costs 
associated with updating arbitrator biographies.
    This rule is not a significant regulatory action for the purposes 
of Executive Order 12866 and has not been reviewed by the Office of 
Management and Budget. As required by the Regulatory Flexibility Act, I 
certify that this rule will not have a significant impact on a 
substantial number of small entities. This regulation does not have any 
federalism or tribal implications.
    Background: On August 6, 2008, FMCS published a Notice of Proposed

[[Page 30705]]

Rulemaking (NPRM) proposing changes to its rules relating to the 
removal of arbitrators from the FMCS roster, the process relating to 
complaints about arbitrators, procedures for requesting arbitrator 
lists and panels, arbitrators' inactive status, the selection by 
parties and appointment of arbitrators, and arbitrators' obligation to 
provide FMCS with certain case information. The proposed rules also 
addressed FMCS's response to requests for arbitration lists or panels 
made by one party, where the collective bargaining agreement requires 
that the request be jointly submitted. In addition, the proposed rules 
addressed FMCS's option to decline to service any request from a party, 
based on the party's non-payment of arbitrator fees, and raised the 
annual listing fee for arbitrators on the FMCS roster.
    FMCS is adopting the final rule with one change from that which was 
proposed. The final rule withdraws the proposed revisions to Sec.  
1404.9(b), which had modified FMCS's response to requests for 
arbitration lists or panels made by one party, where the collective 
bargaining agreement requires that the request be jointly submitted.
    Discussion of Comments: FMCS received comments from two sources in 
response to the NPRM. One commentator suggested that the proposed 
changes to Sec.  1404.9(b) insert FMCS into the arena of administering 
and interpreting collective bargaining agreements, and do not take into 
account the parties' past practices. FMCS has given careful review and 
consideration to the comment and the language in the proposed revision 
to Sec.  1404.9(b) and has determined it will withdraw the revision to 
Sec.  1404.9(b).
    FMCS received comments from two sources regarding the proposed 
changes to Sec.  1404.9(d). One commentator opposed the revision to the 
extent that it could allow a single failure to pay an arbitrator's fees 
to disqualify a party from obtaining a panel. Another commentator 
objected to the revision because the proposed rule does not 
differentiate between a genuine fee dispute and simple nonpayment. FMCS 
has given careful review and consideration to the comments. FMCS has 
determined, however, that the proposed rule, by stating only that 
FMCS's office of arbitration services may decline to service any 
request from a party based on the party's non-payment of fees, will 
ensure that decisions whether to decline services will be considered. 
Accordingly, no changes are made to the final rule.

List of Subjects in 29 CFR Part 1404

    Administrative practice and procedure, Labor management relations.

0
For the reasons stated in the preamble, FMCS amends 29 CFR Part 1404 as 
follows:

PART 1404--ARBITRATION SERVICES

0
1. The authority citation for part 1404 continues to read as follows:

    Authority: 29 U.S.C. 172 and 29 U.S.C. 173 et seq.


0
2. Amend Sec.  1404.5 by revising paragraph (d) introductory text to 
read as follows:


Sec.  1404.5  Listing on the roster; criteria for listing and 
retention.

* * * * *
    (d) Listing on roster, removal. Listing on the Roster shall be by 
decision of the Director of FMCS based upon the recommendations of the 
Board or upon the Director's own initiative. The Board may recommend 
for removal, and the Director may remove, any person listed on the 
Roster for violation of this Part or of the Code of Professional 
Responsibility. FMCS will provide to the affected arbitrator written 
notice of removal from the Roster. Complaints about arbitrators should 
be in writing and sent to the Director of OAS. The complaint should 
cite the specific section of the Code or the FMCS rule the arbitrator 
has allegedly violated. The following criteria shall be a basis for the 
Board to recommend and/or the Director to initiate a member's removal 
from the Roster:
* * * * *


0
3. Revise Sec.  1404.6 to read as follows:


Sec.  1404.6  Inactive status.

    (a) A member of the Roster who continues to meet the criteria for 
listing on the Roster may request that he or she be put in an inactive 
status on a temporary basis because of ill heath, vacation, schedule or 
other reasons.
    (b) Arbitrators whose schedules do not permit cases to be heard 
within six months of assignment are encouraged to make themselves 
inactive temporarily until their caseload permits the earlier 
scheduling of cases.
    (c) An arbitrator can remain on inactive status without paying any 
annual listing fee for a period of two (2) years. If an arbitrator is 
on inactive status for longer than two (2) years, the arbitrator will 
be removed from the Roster unless he or she pays the annual listing 
fee.


0
4. Amend Sec.  1404.9 by revising paragraph (d) to read as follows:


Sec.  1404.9  Procedures for requesting arbitration lists and panels.

* * * * *
    (d) The OAS reserves the right to decline to submit a panel or to 
make an appointment of an arbitrator if the request submitted is overly 
burdensome or otherwise impracticable. The OAS, in such circumstances, 
may refer the parties to an FMCS mediator to help in the design of an 
alternative solution. The OAS may also decline to service any request 
from a party based on the party's non-payment of arbitrator fees or 
other behavior that constrains the spirit or operation of the 
arbitration process.
* * * * *

0
5. Revise Sec.  1404.12 to read as follows:


Sec.  1404.12  Selection by parties and appointment of arbitrators.

    (a) After receiving a panel of names, the parties must notify the 
OAS of their selection of an arbitrator or of the decision not to 
proceed with arbitration. Upon notification of the selection of an 
arbitrator, the OAS will make a formal appointment of the arbitrator. 
The arbitrator, upon notification of appointment, shall communicate 
with the parties within 14 days to arrange for preliminary matters, 
such as the date and place of hearing. Should an arbitrator be notified 
directly by the parties that he or she has been selected, the 
arbitrator must promptly notify the OAS of the selection and of his or 
her willingness to serve. The arbitrator must provide the OAS with the 
FMCS case number and other pertinent information for the OAS to make an 
appointment. A pattern of failure by an arbitrator to notify FMCS of a 
selection in an FMCS case may result in suspension or removal from the 
Roster. If the parties settle a case prior to the hearing, the parties 
must inform the arbitrator as well as the OAS. Consistent failure to 
follow these procedures may lead to a denial of future OAS services.
    (b) If the parties request a list of names and biographical 
sketches rather than a panel, the parties may choose to contact and 
select an arbitrator directly from that list. In this situation, 
neither the parties nor the arbitrator is required to furnish any 
additional information to FMCS and no case number will be assigned.
    (c) Where the parties' collective bargaining agreement is silent on 
the manner of selecting arbitrators, FMCS will accept one of the 
following methods for selection from a panel:
    (1) A selection by mutual agreement;
    (2) A selection in which each party alternately strikes a name from 
the submitted panel until one remains;

[[Page 30706]]

    (3) A selection in which each party advises OAS of its order of 
preference by numbering each name on the panel and submitting the 
numbered list in writing to OAS. If the parties separately notify OAS 
of their preferred selections, OAS, upon receiving the preferred 
selection of the first party, will notify the other party that it has 
fourteen (14) days in which to submit its selections. Where both 
parties respond, the name that has the lowest combined number will be 
appointed. If the other party fails to respond, the first party's 
choice will be honored.
    (d) Where the parties' collective bargaining agreement permits each 
party to separately notify OAS of its preferred selection, OAS will 
proceed with the selection process as follows. When the OAS receives 
the preferred selection from one party, it will notify the other party 
that it has fourteen (14) days in which to submit its selections. If 
that party fails to respond within the deadline, the first party's 
choice will be honored unless prohibited by the collective bargaining 
agreement. Where both parties respond, the name that has the lowest 
combined number will be appointed. If, within fourteen (14) days, a 
second panel is requested, and is permitted by the collective 
bargaining agreement, the requesting party must pay a fee for the 
second panel.
    (e) The OAS will make a direct appointment of an arbitrator only 
upon joint request or as provided by paragraphs (c) (3) or (d) of this 
section.
    (f) A direct appointment in no way signifies a determination of 
arbitrability or a ruling that an agreement to arbitrate exists. The 
resolution of disputes over these issues rests solely with the parties.


0
6. Amend the Appendix to 29 CFR Part 1404 by removing ``$100'' and 
adding ``$150'' in its place.

    Dated: May 26, 2010.
Jeannette Walters-Marquez,
Attorney Advisor.
[FR Doc. 2010-13120 Filed 6-1-10; 8:45 am]
BILLING CODE 6732-01-P